Wednesday, 6 February 2013

“Laws are like sausages — it is best not to see them being made”. Bismarck [disputed]

In part one I argued that should the EU out of spite try to frame laws that onerously only affect the UK, and no other, those laws would be against the fundamental principles of the treaties and spirit of the EU and the Single Market.

This then leaves very limited scope for the EU to try, within the context of treaties, to find something that would only apply to the UK but would not apply as an unintended consequence to other Member States. In short, one that has to still fulfill the EU Directive “General Effect” or the EU regulation "applies to all member states" clause.

Should they however do so, they then stumble upon very significant problem number two in the form of... timescale.

As the Lisbon Treaty exit clause - Article 50 (3) - clearly states there is a two year notice period before the UK is able to remove itself from the jurisdiction of the EU. This two year period can be shortened by an agreement, signed off by both parties, which specifies this, or extended beyond the two years also by agreement by both parties. Nonetheless two years is the default requirement in absence of an agreement under the unilateral part of Article 50 should the UK choose not to negotiate or refuse EU terms.

In the event of notice by David Cameron to leave the EU, this then gives the EU the challenge to find such a law, create one, draft it, invoke it and then win any legal challenges from the UK seeking to delay such a law, all within the space of two years.

That argument not only overlooks the principles of the Single Market, but another of the defining characteristics of the EU – that it moves with glacial pace, if not slower. To illustrate how slow, this piece (and part 3) will attempt outline, if not necessarily comprehensively, the kind of timescales involved.

It’s worth noting at this point that the EU is, if nothing else, a significantly large bureaucracy - there to serve the people it employs, that is the legacy of the Monnet project. The EU absolutely loves law – the more complicated the better. By preventing the layman from getting a grip on what is being done in his name it becomes another form of unaccountable control. Nothing illustrates the characteristics of the EU better than community legislation in force.

EU law thus is bewildering complex, so as a consequence one thing is certain - the process of it eventually being implemented in member states is not fast. And this lack of speed is imbued within its culture. A complexity that is illustrated below (click to enlarge)

In the UK, Parliament cannot function in the same lackadaisical time frame as EU Institutions because on a regular basis it has to request a mandate from the electorate and any laws that are not passed before an end of a Parliamentary period are either dropped or rushed through in the ‘wash-up’ process. And ultimately it cannot bind its successor.

By contrast, the EU has the luxury of not being subjected to such inconveniences, and so by being immune from the democratic process long term plans can continue without interruption. It is revealing that during EU Parliamentary elections the process of EU law-making remains largely unaffected and continues regardless.

This can mean, for example, that from a standing start, where a completely new issue is being considered, framing a directive can take up to 20 years. This though is at the more extreme end of the time scale. But a good example of the EU's slow processes can be found with food labeling. A review was announced by the EU Commission in 2004, a regulation was issued in 2006, Yet by 2011 (2 years after an EU Parliamentary election) the regulation
was still active yet to be implemented having come to a temporary standstill.

The EU thus likes slow; its priority is to reach its destination eventually not necessarily to do it in a hurry.

Another culture which is embedded within the EU is another which is often overlooked, is a consequence of the project not yet being finished. Performing, as it currently does, a transition from intergovernmental structures to a supranational ones (in the vision of Monnet) has meant that since its conception it has been trapped for all of its existence between two incompatible ideologies - not fully one or the other. The idea of closer union has been true with each treaty but yet has never fully negated the intergovernmental part. This has inevitably created rival factions within EU institutions.

Nothing embodies this more than the 'mistake' in the Lisbon Treaty of making the European Council permanent, thus creating an institutional and inherent power struggle inevitable between the intergovernmental EU Council and the supranational EU Commission. Such conflicts also can be found further down the chain of the process of EU law. Though Lisbon extended Qualified Majority Voting - inline with the wishes of Monnet - removing the national veto from certain policy areas (which can be found here on page 3 onwards), the use of member state's vetoes within the Council still remain in crucial areas such as taxation and foreign affairs for example.

And it is with this in mind that we turn to the 'ordinary legislative procedure', formally known before the Lisbon Treaty as 'co-decision' - the main legislative procedure by which EU directives and regulations are adopted. Article 294 lays the procedure here on page 197. The simplest way of describing the procedure is that it has three potential stages, or readings, and eight termination or exit points, for legislative outcomes - five exit points mean the act is adopted, three mean the act is not adopted.

'Ordinary legislative procedure' begins with the EU Commission - which generally (but not exclusively) has the ability to propose new laws, but it can only do so with a legal basis that is outlined within EU treaties. The EU is only be able to exercise those powers that have been conferred on it by the Member States - willingly agreed to by those member states. The Commission proposes a draft law to both the EU Parliament and the Council. The draft law ultimately has to be approved by both bodies.

It can be approved with the text as is presented by an absolute majority vote in the Parliament and (usually) by a QMV vote in Council. However, after the first reading Parliament may vote to propose amendments to the draft law and thus follows a procedure of subsequent readings where both parties to try to adopt a joint text that they both agree on. Any failure to reach agreement between them results in failure of the proposals.

It's worth noting that while the Council largely uses QMV, Parliament acts by an absolute majority of votes cast, and since the Lisbon Treaty, by having equal say in the legislative procedure means it has the effective right of a veto. This gives it a bargaining power that it lacked previously, where it was only consulted and its views could be ignored by the Council. This then gives ample opportunity for member states if they so wish to block or delay legislation.

In addition, the Lisbon Treaty, also includes a 'braking system' for member states for certain legislative proposals such as ones which affect its criminal justice system. As per Articles 81 and 82 (page 32 onwards) a member state can refer a proposal under ordinary legislative procedure to the European Council and thereby suspend it for four months:

3. Where a member of the Council considers that a draft directive as referred to in paragraph 2 would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure.

However if no consensus is reached within four months, the ordinary legislative procedure is converted to enhanced cooperation for member states which wish to follow it and excludes those that don't.

The processes of ordinary legislative procedure illustrates clearly that the EU is a mixture of member states' wishes and the wishes of itself, where it cannot arbitrarily impose laws without a degree of compliance within the system of the member states. Instead it is imbued with a culture of horse-trading rather than one of outright dictatorship.

Therefore the EU would have many hurdles to address to inflict, out of spite, a law to damage deliberately a member state should the state in question invoke Article 50. It has to find a law that is within the treaties, has a general effect, does not affect other member states in the process, has agreement of the majority of the other member states, passes due process within the EU itself, is not subject to a veto within the Council and do all this within a certain time frame.

In the very unlikely event they discover one, they will hit upon another very
serious problem - non compliance by a member state - and it is that I will address in the final part.

7 comments:

Excellent piece TBF, I know that you say that EU law seems to be a mixture of what the member states initiate and that that is initiated by the Commission, but that initial bubble in that chart seems to suggest that the only viable ideas really come from the EC... And then, as you say, the horse-trading commences.

Since you have been reading a bit lately TBF, you haven't come across anything about the following have you?

I have heard that any referendum on the EU would, subject to the treaty of Lisbon and after 2014, become something which must be referred to the EC for "approval".

I'm thinking of the Greek crisis being passed off as a natural disaster to enable bailouts. Bailouts illegal under Maastricht, and the breaking of the Growth and Stability Pact.

In those cases there was a damned good and existential reason for what they were doing.

In the case of the UK leaving the EU, I'm inclined to agree with your point of view. They may as well come to terms swith the new reality rather than act through spite.

I don't think the important thing is what the EU would hatch. It's more that the UK government would have had its arm twisted to apply for Art 50 exit and its heart wouldn't be in it, rather it would be looking for ways to derail the process.

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About The Boiling Frog

A blog about the anti-democratic and pernicious European Union with particular emphasis on its impact here in the UK. Also I'll cover British politics and occasionally chuck some whimsical nonsense in as well.

EU quotes

"[There's no way Britain could accept that] the most vital economic forces of this country should be handed over to an authority that is utterly undemocratic and is responsible to nobody"(British Prime Minister Clement Attlee in response to the Schuman Plan 1950)

"We should frankly recognise this surrender of sovereignty and its purpose."(Edward Heath, Hansard, 17 November 1966)

“America would welcome it if Britain should apply for full membership in the [EEC], explicitly recognising that the Rome treaty was not merely a static document but a process leading towards political unification.”(George Ball Under-Secretary of State for JFK 1961)

"The single market was the theme of the Eighties; the single currency was the theme of the Nineties; we must now face the difficult task of moving towards a single economy, a single political unity."(Romano Prodi, 13 April 1999)

"We perform the duties of freemen; we must have the privileges of freemen ..."(Chartists 1836)

"The [Lisbon Treaty] is indeed a tidying -up exercise, it sweeps the rest of our sovereignty under the Brussels carpet."(Lord Pearson)"The Government’s guiding principle was...to swallow the lot and swallow it now."(Sir Con O’Neill, the British diplomat who led the UK’s negotiations for EEC membership under Heath)

"I look forward to the day when the Westminster Parliament is just a council chamber in Europe."(Kenneth Clarke, Conservative Chancellor in International Currency Review Vol 23 No 4 1996)"The EU is the old Soviet Union dressed in Western clothes"(President Gorbachev)

"Europe's power is easy to miss. Like an 'invisible hand', it operates through the shell of traditional political structures. The British House of Commons, British law courts, and British civil servants are still here, but they have all become agents of the European Union implementing European law. This is no accident."(Mark Leonard co-founder and director of the European Council on Foreign Relations, the first pan-European think tank)

“I have lived in your future ….and it doesn’t work”(Russian dissident Vladimir Bukovsky on the EU)

"Determined to lay the foundations of an ever closer union among the peoples of Europe"(Treaty of Rome 1957)

"This Treaty marks a new stage in the process of creating an ever closer union..."(Maastricht Treaty 1992)

"Now we've signed it - we had better read it"(Douglas Hurd, former Foreign Secretary on the Maastricht Treaty)"The supremacy of Community Law when in conflict with national law is the logical consequence of the federal concept of the Community"(H P Ipsen, 1964 - 9 years before the UK joined)

"[Norway] held a referendum [on the EU] that went the wrong way"(Douglas Hurd, former Foreign Secretary on the Maastricht Treaty)

"Public opinion will be led to adopt, without knowing it, the proposals we dare not present to them directly. All the earlier proposals will be in the new text, but will be hidden and diguised" (Valery Giscard D'Estang. on the Lisbon treaty)

"The Tories have been indulging in their usual double talk. When they go to Brussels they show the greatest enthusiasm for political union. When they speak in the House of Commons they are most anxious to aver that there is no commitment whatever to any political union."(Labour MP Hugh Gaitskell, October 1962)"It means the end of a thousand years of history."(Hugh Gaitskell - 1906-63, on a European federation; speech at Labour Party Conference, 1962)

"The Constitution is the capstone of a European Federal State."(Guy Verhofstadt, Belgian Prime Minister)'If it's a Yes we will say "on we go", and if it's a No we will say "we continue".'(Jean-Claude Juncker, President of the European Council)

“The substance of the Constitution is preserved. That is a fact.”(German Chancellor Angela Merkel on the Lisbon Treaty)

"I have read some of [the Lisbon Treaty] but not all of it." (Caroline Flint, former Minister for Europe)

"The primary reason why Britain entered into [EEC] negotiations was political, political in its widest sense."(Edward Heath, lecture at Harvard, 1967)

“They must go on voting until they get it right.”(Jose Manuel Barroso, President of the European Commission)

"If you go through all the structures and features of this emerging European monster you will notice that it more and more resembles the Soviet Union."(Russian dissident Vladimir Bukovsky)"The European Union is a state under construction."(Elmar Brok, Chairman of the European Parliament’s Committee on Foreign Affairs)

“I have never understood why public opinion about European ideas should be taken into account at all,”(French PM Raymond Barre)

“Let’s be clear about this. The rejection of the constitution was a mistake that will have to be corrected.”(Valéry Giscard d’Estaing)

“The 'no' votes were a demand for more Europe, not less.”(Romano Prodi, former President of the European Commission)"I don’t want an ‘in or out’ referendum because I don’t think out is in Britain’s interests.”(David Cameron, who won't hold a referendum because he thinks he'll lose)

"In Brussels one says "member state". You may imagine it means the same thing as country or state, but "member state" does not. Note that adjective. Member modifies state. Like "wooden" modifies "leg". The noun stays the same, but the essence of the thing is gone." (Mary Ellen Synon, Bruges Group Annual Conference 2013)

"No government dependent on a democratic vote could possibly agree in advance to the sacrifices which any adequate plan for European Union must involve. The people must be led slowly and unconsciously into the abandonment of their traditional economic defences, not asked…"(Peter Thorneycroft, former Tory MP)

"[Bailouts are] expressly forbidden in the treaties by the famous no-bailout clause. De facto, we have changed the treaty."(French Europe minister Pierre Lelouche)

"The European Union must take a decisive step towards a federal economic government, with common fiscal policies and a larger budget, if it is to save the euro. "(Andrew Duff Lib Dem MEP 2011)

"The transfer by the States from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights... against which a subsequent act incompatible with the concept of the Community cannot prevail"(ECJ Case 6/64)

"[The EU Constitution represents] a visible move in only one direction...from intergovernmentalism to supranationalism...and this should be explained to the people of Europe"(Czech Republic President Vaclav Klaus)

"The European Parliament is a caucusing body that is incredibly responsive to lobbying institutions, but it is completely unresponsive to public opinion."(Gisela Stuart, Labour MP June 2009)

“Millions of people in this country will feel as I do, that legislation passed in this way, with no consent, cannot command the assent of the country and would lack moral and constitutional validity."(Douglas Jay MP during 2nd reading of European Communities Bill 1972)

"It is an illusion to think that [EU] states can hold on to their autonomy."(Hans Tietmeyer, head of the Bundesbank 1991)"...within ten years 80% of our economic legislation, perhaps even fiscal and social as well’ would come from the EU."(Jacques Delors, President of EU Commission 1988)

"The huge cost of the Common Agricultural Policy to taxpayers and consumers far outweighs any benefit to them..."(Memo by MAFF to House of Lords European Communities Committee 1995)

"...we must now face the difficult task of moving towards a single economy, a single political unity."(Romano Prodi, President of EU Commission 1999)

"The day of the nation state is over."(Roman Herzog, German president, 1996)

"The European system of supranationality comes at the cost of democracy."(Lord Leach of Fairford)

"A European currency will lead to member nations transferring their sovereignty over financial and wage policy as well as monetary affairs."(Hans Tietmeyer, head of the Bundesbank, 1991)

"The single currency is the greatest abandonment of sovereignty since the foundation of the European Community: the decision is of an essentially political nature"(Felipe Gonzalez, a Spanish former PM, 1998)

"The [EU] Council of Ministers will have far more power over the budgets of member states than the federal government in the United States has over the budget of Texas."(Jean-Claude Trichet, current head of the European Central Bank)

"One must never forget that monetary union, which the two of us were the first to propose more than a decade ago, is ultimately a political project. It aims to give a new impulse to the historic movement toward union of the European states"(Giscard d’Estaing, who drafted the EU Constitution 1997)

"The process of monetary union goes hand in hand, must go hand in hand, with political integration and ultimately political union. EMU [economic and monetary union] is, and always was meant to be, a stepping stone on the way to a united Europe"(Wim Duisenberg, first president of the EU Central Bank)

"Once the interlude of [WWI] was over, [countries] all went back to the rules and customs of traditional parliamentary democracies. I felt out of my depth."(Jean Monnet 'Father of Europe')

"We need to build a United States of Europe with the [EU] Commission as government."(Viviane Reding, EU Commissioner 2014)

"We had imagined a political 'grand design', a new international order..."(Jean Monnet 'Father of Europe')

"I like the English style of life. I feel more at home here in London"(Tintin creator, Belgian born Herge)

"We are not forming coalitions between States, but union among people"(Jean Monnet, 'Father of Europe')

"The sovereign nations of the past can no longer solve the problems of the present: they cannot ensure their own progress or control their own future. And the Community itself is only a stage on the way to the organised world of tomorrow."(Jean Monnet, 'Father of Europe')

"That such an unnecessary and irrational project as building a European super-state was ever embarked on will seem in future years to be perhaps the greatest folly of the modern era. And that Britain . . . should ever have become part of it will appear a political error of the first magnitude."(Lady Thatcher, Statecraft)

"There is no question of Britain losing essential national sovereignty”(Ted Heath)

The British Government Knew The Consequences In 1971

...the transfer of major executive responsibilities to the bureaucratic Commission in Brussels will exacerbate popular feeling of alienation from government. To counter this feeling, strengthened local and regional democratic processes within the member states and effective Community regional economic and social policies will be essential.Parliamentary sovereignty will be affected as we have seen. But the need for Parliament to play an increasing (if perhaps more specialised) role may develop. Firstly, although a European Parliament might in the longest term become an effective, directly elected democratic check upon the bureaucracy, this will not be for a long time, and certainly not in the decade to come. In the interval, to minimise the loss of democratic control it will be important that the British Parliamentarians should play an effective role both through the British membership in the European Parliament and through the processes of the British Parliament itself.